LLB220 Study Guide - Final Guide: Independent Business, State Transit Authority, Estoppel
SERVITUDES OVER LAND PT 1: EASEMENTS
AND PROFITS
Incorporeal rights to property
- Corporeal hereditaments
- Incorporeal hereditaments
An easement is not:
- Part of the natural rights attaching
to land, e.g.: Right to support,
Right to the flow of water
- A licence
- A lease
Servitudes over land
TOPIC 6: Easements and profits à prendre
TOPIC 7: Covenants over freehold land
- What are the substantive
requirements?
- What are the formal requirements?
- Does the right created “run with”
the land?
- Does it become a proprietary
interest?
Easements
May be positive or negative
See text at 12.8 onwards for examples
Finding a valid easement
1. Substantive requirements
2. Formal requirements
Substantive requirements
- There must be a dominant and
servient tenement
- The easement must accommodate
the dominant land
- The dominant and servient
tenement owners must be different
persons
- The right created must be capable
of forming the subject matter of a
grant
See text [12.3] and Re Ellenborough Park
[1956] Ch 131
1. Dominant and servient tenants
Easement in gross
Ackroyd v Smith (1850) 10 CB 164
But – dominant tenement can be another
incorporeal hereditament (e.g. a profit)
Note effect of s 88A Conveyancing Act
1919 (NSW)
2. Easement must accommodate
dominant tenement
Cannot merely benefit owner personally:
“a right enjoyed by one over the land of
another does not possess the status of an
easement unless it accommodates and
serves the dominant tenement, and is
reasonably necessary for the better
enjoyment of that tenement, for if it has no
necessary connection therewith, although
it confers an advantage upon the owner
and renders his ownership of the land more
valuable, it is not an easement at all, but a
mere contractual right personal to and only
enforceable between the two contracting
parties” (Cheshire, Modern Real Property,
cited by the court in Re Ellenborough
Park)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Part of the natural rights attaching to land, e. g. : right to support, Finding a valid easement: substantive requirements, formal requirements. There must be a dominant and servient tenement. The easement must accommodate the dominant land. The dominant and servient tenement owners must be different persons. The right created must be capable of forming the subject matter of a grant. [1956] ch 131: dominant and servient tenants. But dominant tenement can be another incorporeal hereditament (e. g. a profit) 1919 (nsw: easement must accommodate dominant tenement. Park) right to a view right to protection from weather. Note also difference between these and negative easements e. g. right to flow of air through an aperture. Right must not be inconsistent with the continuing proprietorship or possession of servient owner. Registered easement: s 46 rpa (recorded on folio) Enforceable agreement to grant (in writing or oral and supported by part performance): walsh v.
